Wright and Secretary, Department of Social Services (Social services second review)

[2019] AATA 219

Wright and Secretary, Department of Social Services (Social services second review) [2019] AATA 219 (22 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/3425

Re:Paul Wright  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:22 February 2019

Place:Brisbane

The Tribunal affirms the decision under review.

.....................[SGD]..............................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447;  (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

22 February 2019

INTRODUCTION

1. On 29 September 2016, Mr Paul Wright (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]

   [1] Exhibit 1, T-Documents, T 15, pages 125-154, Disability Support Pension claim form completed by Applicant.

2. The claim was rejected on 25 August 2017[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 13 March 2018.[3]

   [2] Exhibit 1, T-Documents, T 18, pages 161-162, Centrelink Notice: Rejection of your claim for Disability Support Pension.

   [3] Exhibit 1, T-Documents, T 23, pages 186-191, Decision and notes of Authorised Review Officer.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). The SSCSD affirmed the decision of the ARO on 5 June 2018.[4]

   [4] Exhibit 1, T-Documents, T 2, pages 4-9, Decision of the Social Services & Child Support Division.

4. Following this, the Applicant sought a second-tier review of his matter by the General Division of this Tribunal, by way of an application dated 21 June 2018.[5]

   [5] Exhibit 1, T-Documents, T 1, pages 1-3, Application for Review.

5. On 8 February 2019, a Hearing was held for this application. The Applicant was           self-represented and gave evidence under affirmation at the Hearing by telephone.

6. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.

   BACKGROUND

7. On the Applicant’s claim for DSP form he lists the following disabilities, illnesses or injuries:[6]

   ·Paranoid schizophrenia

   ·Very obese from medications

   [6] Exhibit 1, T-Documents, T 15, page 150, Disability Support Pension claim form completed by Applicant.

8. On 25 August 2017, a decision was made to reject the Applicants DSP on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[7]

   [7] Exhibit 1, T-Documents, T 18, page 184, Centrelink Notice: Rejection of your claim for Disability Support Pension.

9. On 29 September 2017, the Applicant lodged a further claim for DSP[8]. On 26 October 2017 the Applicant subsequently attended a video conference appointment with a Job Capacity Assessor (JCA).[9] In a report dated 12 December 2017, the JCA made the following assessments:

   -The Applicant’s paranoid schizophrenia, generalised anxiety disorder and recurrent depression conditions were not fully treated or fully stabilised;[10]

   -The Applicant’s hypertension, obesity and alcohol dependence conditions were not fully diagnosed, fully treated or fully stabilised;[11]and

   -The Applicant’s work capacity within 2 years with intervention was 15 to 22 hours per week.[12]

   [8] Exhibit 1, T-Documents, T28, page 208, Centrelink Mainframe Screen Printouts.

   [9] Exhibit 1, T-Documents, T21, page 169, Job Capacity Assessment Report.

   [10] Exhibit 1, T-Documents, T21, page 181, Job Capacity Assessment Report.

   [11] Exhibit 1, T-Documents, T 21, pages 181-182, Job Capacity Assessment Report.

   [12] Exhibit 1, T-Documents, T21, page 179, Job Capacity Assessment Report.

10. On 13 March 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP having made the following key findings:[13]

    •     Your conditions of paranoid schizophrenia, generalised anxiety disorder/social and heights phobias ad recurrent depression, alcohol dependence, hypertension and morbid obesity are not accepted as being permanent as they have not been fully treated and fully stabilised.

    •     You do not have an impairment rating of 20 points or more.

    [13] Exhibit 1, T-Documents, T 23, page 187, Decision and notes of Authorised Review Officer.

11. On 3 April 2018, the Applicant sought review of the ARO’s decision.[14] On 5 June 2018, the decision under review was affirmed by the SSCSD.[15]

    [14] Exhibit 1, T-Documents, T24, pages 192-195, Request for statement.

    [15]  Exhibit 1, T-Documents, T 2, pages 4-9, Decision of the Social Services & Child Support Division.

    THE LAW

12. The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

13. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

    1.    Does the applicant have a physical, intellectual or psychiatric impairment;[16]

    2.    Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[17] and

    3.    Does the Applicant have a continuing inability to work?[18]

    [16] Section 94(1)(a) of the Act.

    [17] Section 94(1)(b) of the Act.

    [18] Section 94(1)(c) of the Act.

14. The Impairment Tables are set out in the Determination which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:

    a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    b)are function based rather than diagnosis based; and

    c)describe functional activities, abilities, symptoms and limitations; and

    d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

15. Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[19] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[20] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[21]

    [19] Section 6(1) of the Determination.

    [20] Section 6(2) of the Determination.

    [21] Section 8(1) of the Determination.

16. Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[22]

    [22] Section 6(3) of the Determination.

17. In order for a person’s condition to be considered permanent the condition must:[23]

    a)have been fully diagnosed by an appropriately qualified medical practitioner;

    b)have been fully treated;

    c)have been fully stabilised; and

    d)more likely than not, in light of available evidence, to persist for more than 2 years.

    [23] Section 6(4) of the Determination.

18. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[24]

    [24] Section 6(5) of the Determination.

19. A condition is considered to be fully stabilised if:[25]

    (a)       either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)       the person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [25] Section 6(6) of the Determination.

20. Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[26]

    [26] Section 6(7) of the Determination.

21. In selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; and identify the correct impairment rating.[27] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table, and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[28] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[29]

    [27] Section 10 of the Determination.

    [28] Sections 10(3) and (4) of the Determination.

    [29] Sections 10(5) and (6) of the Determination.

22. An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; and if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[30]

    [30] Section 11(1) of the Determination.

23. In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which in summary requires that a person must:

    a.if they do not have a severe impairment, have actively participated in a program of support;

    b.be unable to work for at least 15 hours per week independently of a program of support; and

    c.be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

24. A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[31]

    [31] Section 94(3B) of the Act.

25. The Administration Act sets out the qualification for DSP. Assessment of the relevant impairment ratings is to be determined at the date of claim. Where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, the start date for DSP is the date the person becomes qualified.[32] 

    [32] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

26. Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks following. Further medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[33]

    [33] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2012] AATA 922  [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447;  (2014) 144 ALD 133, 139, [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, [25]-[28].

    Relevant Period

27. The Relevant Period in this matter commences on 29 September 2016, being the date the Applicant lodged his DSP application, and ending 13 weeks later on 29 December 2016.  The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    Issues

28. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[34] The Respondent considers the Applicant’s impairments include mental health conditions[35] and alcohol dependence.[36]

    [34] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions dated 7 January 2019, page 5, paragraph 17.

    [35] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions dated 7 January 2019, pages 6-7, paragraphs 29-33.

    [36] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions dated 7 January 2019, pages 7-8, paragraphs 34-36.

29. The remaining issues for the Tribunal to consider are:

    1.Whether within the relevant period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and

    2.If so, did the Applicant have a continuing inability to work?

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

30. At Hearing the Applicant gave evidence by affirmation and openly responded to questions from the Tribunal and cross examination from the Respondent.  I consider that the Applicant gave honest answers to the questions he was asked. I am left with no doubt that the Applicant suffers impairments due to the conditions outlined below.

31. The present issue for the Tribunal is whether at or during the Relevant Period the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables.  A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[37] As such the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[38] 

    [37] Section 6(3) of the Determination.

    [38] Section 6(4) of the Determination.

32. I will consider each of the Applicant’s impairments in turn.

    Mental health conditions

33. Based on the medical reports and the evidence provided by the Applicant at Hearing, I accept that the Applicant has mental health conditions.

34. To be considered fully diagnosed Table 5 of the Impairment Tables, which relates to mental health, requires the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[39]

    [39] The Determination, Table 5.

35. In a Centrelink Medical Report for DSP dated 24 February 2015, Dr Nisha Manoheran, the Applicant’s general practitioner diagnosed schizophreniform disorder with depressive and anxiety features and indicated that the diagnosis was supported by Dr Amitara Sarkar with the date of diagnosis being 4 October 2014.[40]

    [40] Exhibit 1, T-Documents, T 5, page 57, Medical Report for Disability Support Pension completed by          Dr Nisha Manoheran.

36. Dr Sarkar, Consultant Psychiatrist diagnosed the Applicant’s condition as being paranoid schizophrenia and noted an earlier diagnosis as schizophreniform psychosis in a Centrelink Medical Report for DSP dated 9 May 2015.[41]

    [41] Exhibit 1, T-Documents, T 6, page 68, Medical Report for Disability Support Pension completed by          Dr Amitara Sarkar. page 68.  Dr Sarkar confirmed this diagnosis in a referral to Community Mental Health: Exhibit 5, Letter from Dr Amitara Sarkar dated 9 May 2015.

37. Further, diagnoses in relation to the Applicant’s mental health conditions were made by

    
    

    Dr Edward Wims (consultant psychiatrist),[42] Dr Katrina Dunn (provisional psychologist)[43] and Dr Karen Chau (consultant psychiatrist)[44] with confirmed diagnosis’s including paranoid schizophrenia, recurrent depression, generalised anxiety disorder and social and heights phobias.[45]

    [42] Exhibit 1, T-Documents, T 8, page 82, Medical Report by Dr Edward Wims, Consultant Psychiatrist;     Exhibit 1, T-Documents, T 10, pages 86-90 Total & Permanent Disablement Claim – Treating Specialist’s Statement form by Dr Edward Wims.

    [43] Exhibit 1, T-Documents, T 12, pages 97-98, Medical report by Katrina Dunn, Provisional Psychologist.

    [44] Exhibit 1, T-Documents, T 13, pages 99-122, Medico-Legal Report by Dr Karen Chau, RedHealth Medical Assessments, Consultant Psychiatrist.

    [45] It is noted that the diagnosis of paranoid schizophrenia, alcohol use, generalised anxiety disorder and recurrent depression is also provided in a Discharge Summary completed by Lina Nolan which also lists the Applicant’s treating psychiatrist as Dr Paul Henderson during engagement with the Queensland Government Mental Health Service: Exhibit 1, T-Documents, T 17, pages 157-160, Discharge Summary by Lina Nolan, Mackay Community Mental Health, Social Worker.

38. Based on the medical evidence outlined above, I am satisfied that the Applicant had mental health conditions which were fully diagnosed at the Relevant Period.  The Respondent does not dispute this finding however contends that the conditions were not fully treated or fully stabilised during the Relevant Period.[46]

    [46] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 7 January 2019, page 6, paragraph 29.

39. In a Total and Permanent Disablement Claim, Treating Specialist’s Statement – General, dated 20 January 2016, Dr Wims, as the Applicant’s treating psychiatrist, opined that not all treatment options had been exhausted and listed other treatment options included olanzapine, clozapine and first generation anti-psychotics.[47]

    [47] Exhibit 1, T-Documents, T 10, page 88, Total & Permanent Disablement Claim – Treating Specialist’s Statement form by Dr Edward Wims.

40. Dr Mahoheran, the Applicant’s treating general practitioner, opined in a Total and Permanent Disablement Claim, Treating Specialist’s Statement – General, dated 29 January 2016 that not all treatment options had been exhausted and provided that ‘as per directions from treating psychiatrist still other options to consider’.[48]

    [48] Exhibit 1, T-Documents, T 11, page 93, Total & Permanent Disablement Claim – Treating Specialists’s Statement form by Dr Edward Wims.

41. In a letter to Windsor Income Protection, dated 5 February 2016, Dr Dunn provided that the Applicant’s current treatment regime included psychopharmacology; case management and ongoing appointments with the dual-diagnosis clinician.   With the current treatment plan involving monitoring the Applicant’s mental state; monitoring medication compliance and medication efficacy; psychoeducation; and providing support with developing health coping strategies.[49]

    [49] Exhibit 1, T-Documents, T 12, page 97, Medical report by Katrina Dunn, provisional Psycholgist.

1. In a letter dated 8 May 2015, Dr Sarkar referred the Applicant’s ongoing care to Community Mental Health.  He provided that he was unable to offer the Applicant more comprehensive treatment required in this [Paranoid Schizophrenia] chronic condition including rehabilitation and frequent contacts.  He opined that the Applicant needed case management and may require a brief admission to the acute unit for medication trials.[50]

   [50] Exhibit 5, Letter from Dr Amitara Sarkar dated 9 May 2015.

2. The Applicant was engaged with the Mackay Mental Health Service from 21 May 2015 until he was discharged on 8 November 2016.[51]  In a Discharge Summary, Lina Nolan, a social worker provided:

   While a client of this service Paul indicated that he wanted to have his symptoms under control and to reduce his alcohol intake.  He also required some assistance with paperwork requirements or income protection etc.

   Paul maintained regular contact with Garry Batt, Dual Diagnosis who provided support in reducing Paul’s alcohol use. Case manager provided intermittent supportive psychotherapy and regular monitoring of mental state, as well as support with paperwork etc.

   In the past three months, Paul has declined face to face involvement from case manager in the context of 2 recent changes in case managers.  He has stated that he would like to only come in for scripts.

   Paul states willingness to engage with Garry Batt, Dual Diagnosis RN, however has failed to attend appointments and has not returned phone calls in the past three months.

   Last Medical Review: 29/8/2016 – reported two brief episodes of paranoia since last review 1/8/16. Reports seeing a private psychiatrist in Brisbane at the end of September.

   Paul has agreed to be referred to his GP for ongoing care and renewal of scripts.[52]

   [51] Exhibit 1, T-Documents, T17, pages 157-160, Discharge Summary by Lina Nolan, Mackay Community Mental Health, Social Worker.

   [52] Exhibit 1, T-Documents, T 17, page 158, Discharge Summary by Lina Nolan, Mackay Community Mental Health, Social Worker.

3. At the Hearing the Applicant told the Tribunal that he had been advised to wait until his income protection insurance payments ceased before applying for DSP.  He said he did that and consequently made an application for DSP on 28 September 2016.

4. When asked about his discharge from the Mackay Mental Health Service the Applicant told the Tribunal that he had an issue with a case manager, told Garry Batt about this and as a result he felt there was a conflict of interest with Mr Batt. The Applicant said that Mr Batt missed an appointment and he himself also missed an appointment. The Applicant told the Tribunal that around the same time (of disengagement with the Service and subsequent discharge) he received a lump sum payment from his insurance company and that when he received the money, he had a dream to start a business but was delusional, he wasted the money as he could not make the calls required to make his business work.  The Applicant said around that time he felt really good so he stopped taking his medication for approximately 3 weeks and he acknowledged that was a mistake and has since seen doctors and sought treatment. The Applicant later told the Tribunal that he stopped taking his medication towards the end of 2016, he was not sure of the exact dates, and indicated that he did not restart his medication until he started seeing Dr Joseph Rillers.

5. The Applicant reported at the Hearing that during the Relevant Period he could look after himself at home however was having paranoid ideations, was able to visit his mother each day and give her encouragement and support to finish her book, had trouble concentrating on television programs which went longer than 30 minutes, felt very jumbled and made poor decisions, could drive short distances and interacted with two close friends either at their houses or the pub. 

6. On cross examination, the Respondent asked the Applicant about his engagement with his medication.  Specifically, the Respondent noted that the Applicant filled a script for his anti-psychotic medication (used to treat his paranoid schizophrenia condition) in December 2016 and then not again until 13 February 2018.  The Applicant agreed with the information put to him contained in the PBS Patient Summary.[53]

   [53] Exhibit 4, Medicare and PBS information and claims history, dated 22 January 2019.

7. The Responded contended in the Statement of Issues, Facts and Contentions that the Applicant’s mental health conditions were not fully diagnosed or fully treated during the Relevant Period.  The Respondent set out:

   30. The Secretary contends that the Applicant had not completed appropriate trials of pharmacological treatment to treat the Applicant's paranoid schizophrenia, as recommended by Dr Wims, during the qualification period (T10, p88), Further, the Applicant disengaged from the community mental health program prior to lodging his claim. Although the Applicant "agreed to be referred to his GP for ongoing care and renewal of scripts" no corroborating evidence is available to confirm what treatment occurred for the Applicant's paranoid schizophrenia and whether treatment was continuing or planned within the next two years.’

   31. Further, no evidence is available which confirms what treatment has occurred in relation to the Applicant's generalised anxiety disorder and recurrent depression and whether treatment was continuing or planned within the next two years and whether significant functional improvement to a level enabling the Applicant to undertake work in the next 2 years was expected to result.[54]

   [54] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions dated 7 January 2019, page 6, paragraphs 30-31.

8. I accept that the Applicant’s paranoid schizophrenia condition is likely to persist for longer than two years and that for the Applicant the two years leading up to the Relevant Period, and to some degree during the Relevant Period, he was experiencing multiple symptoms of his condition that made it difficult for him to fully appreciate what was required to manage this condition. However, based on the medical evidence before the Tribunal, and the evidence given by the Applicant at he Hearing, I find that the Applicant’s paranoid schizophrenia condition was not fully treated and fully stabilised during the Relevant Period as the Applicant had disengaged with treatment.

9. The medical evidence before the Tribunal and the evidence given by the Applicant at Hearing primarily focuses on the Applicant’s paranoid schizophrenia condition. It is reasonable that the recommended non-pharmaceutical treatment would equally assist his management of his recurrent depression, generalised anxiety disorder and, social and heights phobia conditions. There is no evidence before the Tribunal that the Applicant engaged in any independent treatment for these conditions during the Relevant Period other than of a pharmaceutical nature, of which the Applicant told the Tribunal he ceased in late 2016 for a period of time.  As such, I do not consider that these conditions were fully treated or fully stablished during the Relevant Period.

10. As I have found that the Applicant’s mental health conditions were not fully treated and fully stabilised during the Relevant Period, the conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Alcohol Dependence

11. In a letter dated 31 July 2014, Dr Manoheran referred to the Applicant as having a background of Chronic Alcohol Use Disorder, Dr Manoheran wrote:

    Mr Wright is very determined to seek professional help, and has engaged with ATODS services and a psychiatrist at Mackay Community Mental Health.  The type of treatment and rehabilitation for his alcohol use which would be most effective would involve long term detoxification over a period of up to 6 months. Naturally, he has concerns about the financial implications of this as he would not be able to hold a full-time employment position during this period.

    I believe that it is in his best interests to undergo rehabilitation in the immediate future, and I fell that he is capable of overcoming his condition with appropriate held and support.[55]

    [55] Exhibit 1, T-Documents, T 4, page 53, Medical Report by Dr Nisha Manoheran, General Practitioner.

12. In a Total and Permanent Disablement Claim, Treating Specialist’s Statement – General, dated 29 January 2016, Dr Manoheran provided:

    Previous history alcohol dependence – substantial reduction in intake, currently under a dual diagnosis clinical.[56]

    [56] Exhibit 1, T-Documents, T 9 page 93, Medical Declaration Form by Dr Edward Wims.

13. The Applicant was engaged with the Mackay Mental Health Service from 21 May 2015 until he was discharged on 8 November 2016.[57]  A Discharge Summary, dated 8 November 2016, included alcohol use as a diagnosis[58] and made reference to the Applicant’s engagement with Mr Batts up until three months prior to discharge from the service.[59]  Upon discharge Ms Nolan, the author of the Discharge Summary outlined follow up as ‘Referral to ATODS’.[60]

    [57] Exhibit 1, T-Documents, T 17 pages 157-160, Discharge Summary by Lina Nolan, Mackay Community Mental Health, Social Worker.

    [58] Exhibit 1, T-Documents, T 17, page 159, Discharge Summary by Lina Nolan, Mackay Community Mental Health, Social Worker.

    [59] Exhibit 1, T-Documents, T 17, page 158, Discharge Summary by Lina Nolan, Mackay Community Mental Health, Social Worker.

    [60] Exhibit 1, T-Documents, T 17, page 160, Discharge Summary by Lina Nolan, Mackay Community Mental Health, Social Worker.

14. As outlined at paragraph 43 above, the Discharge Summary outlined that the Applicant had disengaged from the service three months prior to his discharge.

15. In addition to the evidence outlined in paragraph 45 above, the Applicant also told the Tribunal at the Hearing that he drank more after not seeing Garry and that his alcohol consumption increased without his support.

16. When asked at Hearing by the Respondent about the noted referral to ATODS upon discharge from the Mackay Mental Health Service, the Applicant stated that he had not attended ATODs as no one had booked him in.

17. The Respondent accepts that the Applicant’s alcohol dependence condition was fully diagnosed at the Relevant Period, however, contends that the condition was not fully treated and fully stabilised.[61]

    [61] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions dated 7 January 2019, pages 7-8, paragraph 34.

18. Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s alcohol dependence condition was fully diagnosed but not fully treated and fully stabilised during the Relevant Period. The Applicant was not actively engaging with reasonable treatment and it is likely that with further treatment the condition would improve.

19. As I have found that the Applicant’s alcohol dependence condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Obesity condition

20. The Applicant listed ‘very obese from medication’ in the ‘List any disabilities, illnesses or injuries that you have’ section of his claim for DSP.[62] When asked about this condition at Hearing the Applicant told the Tribunal that it was a condition that he wanted included in his claim for DSP. He said that his weight had increased due to the medication he had been taking and that it made it hard for him to pick things up off the ground and difficult to go out as he was paranoid that people were judging him, his clothes did not fit and his weight made him more depressed.

    [62] Exhibit 1, T-Documents, T 15, page 150, DSP claim form completed by the Applicant.

21. At the Hearing the Respondent accepted that the Applicant has an obesity condition based on two brief references to the condition in the evidence before the Tribunal.[63]  However, the Respondent contended that the condition was not fully diagnosed, treated or stabilised during the relevant period as there is no corroborating medical evidence in relation to the condition or any functional impairment.

    [63] Exhibit 1, T-Documents, T 12, page 94, Medical report by Katrina Dunn, Provisional Psychologist – ‘Lower back pain, recent weight gain’; Exhibit 1, T-Documents, T 25, page 201, Medical Summary Extracts provided by the Applicant – ‘Increased weight gain’.

22. There is insufficient evidence before the Tribunal to make an assessment of the Applicant’s obesity condition and any associated functional impact during the Relevant Period.  Consequently, I find that the Applicant’s obesity condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.

23. As I have found that the Applicant’s obesity condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Continuing inability to work

24. As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulative across multiple tables, there is no need to consider whether the applicant met the requirements of section 94(1)(c) of the Act.

    CONCLUSION

25. I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

26. I find that the Applicant’s mental health and alcohol dependence conditions were fully diagnosed, however, were not fully treated or fully stabilised during the Relevant Period. Therefore, the conditions could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.

27. I find that the Applicant’s obesity condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Therefore, the condition could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

28. I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.

29. Accordingly, the decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............................[SGD]................................

Associate

Dated: 22 February 2019

Date of Hearing:	8 February 2019
Applicant:	By Phone
Advocate for the Respondent:	Jacky Vetter